2020 QCCA 738, 2020 QCCA 738

Zussman c. Association Lomdei Torah 2020 QCCA 738 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028713-196 (500-17-085621-145) DATE: June 1, 2020 BEFORE THE HONOURABLE GENEVIÈVE COTNAM, J.A. Cili (Jungreis) Zussman APPLICANT – plaintiff v.

Association Lomdei Torah RESPONDENT – defendant SARNA NEUDORFER RESPONDENT – respondent and THE TASHER RABBINICAL GRAND SEMINARY OF MONTREAL THE LAND REGISTRAR OF THE REGISTRATION DIVISION OF TERREBONNE IMPLEADED PARTIES – impleaded parties JUDGMENT [ 1 ] The appellant is seeking leave to appeal of a judgement rendered, on October 31, 2019, by the Superior Court of the district of Montreal (Justice Pierre Nollet), dismissing its application for disavowal of their previous attorney. [ 2 ] The appellant, acting as liquidator for the succession of her father brought action in 2014 asking the nullity of a private deed by which the defendant claims to have acquired the family residence. [ 3 ] In the beginning of the case the appellant clearly intented to file an expert report to establish that the deed of sale had not been signed by her parents.

This was mentioned in the case protocol and the previous attorney had even obtained an extension of the time allowed to set the matter down for judgment as he was still awaiting the graphology report. [ 4 ] It appears however that he was never able to obtain such report as the experts contacted could not express their opinion because of the poor quality of the signatures on the documents made available to them.

As he gave back these documents to the appellant, the previous attorney informed her that he could not file an expertise unless a better copy of the signatures was provided. [ 5 ] The appellant never forwarded such document. The evidence shows that the appellant tried, without success, to retain an expert. Unaware of this fact, the previous attorney proceeded to file the inscription required to set down his case for trial and judgement and informed his client accordingly. [ 6 ] The following spring, a friend advised the appellant that his case would be dismiss in the absence of an expertise.

A few months later, her she was informed that the case was about to be set for trial. The case was set for trial for June 2018 with the appellant’s approval. At the time, she did not raise the matter of the expertise. [ 7 ] In November 2017, without discussing it with her attorney, the appellant, after having identified new signature samples, retained the services of an expert. She presented the report to her attorney in January 2018. After informing her client that it might be difficult to have the report admitted at this stage, the attorney presented a motion to file the report which was dismissed.

No appeal was filed against this judgement. [ 8 ] The case has not yet been heard as it was postponed because of a crowded trial calendar. [ 9 ] The appellant is now seeking to disavow her previous lawyer since she states she never really authorized the setting down for trial without an expert report as she was unaware that it would be difficult to file such report at a later date. [ 10 ] Despite the efforts of the appellant’s actual attorney and the fact that absence of a graphology report may be an obstacle to the appellant’s case, I consider that the appeal has not chances of success and thus that the motion for leave to appeal must be dismissed. [ 11 ] The trial judge had the benefit of hearing the testimony of the appellant and of the previous lawyer.

He correctly assessed the legal criteria he needed to consider under

section 191 C.c.p. and the burden of proof imposed upon the parties. On these basis, he concluded that the appellant had ratified the acts of her attorney.

[ 12 ] He also stated that the appellant failed to inform her attorney that she intended to continue looking for signatures samples and to try to retain an expert. The attorney could therefore consider that he could proceed and set down the case for trial. FOR THESE REASONS, THE UNDERSIGNED: [ 13 ] DISMISSES the application for leave to appeal with costs. GENEVIÈVE COTNAM, J.A. Mtre Michael Hollander OIKNINE & ASSOCIÉS For the applicant Mtre Benoit Morissette TRIVIUM AVOCATS For respondent Association Lomdei Torah Mtre David Banon SPIEGEL, SOHMER For the impleaded The Tasher Rabbinical Grand Seminary Of Montreal Date of hearing: May 27, 2020